When it comes to post-trial awards of attorney fees, most people don’t think of criminal cases. But in federal cases, fees may be awarded to a prevailing criminal defendant “where the court finds that the position of the United States was vexatious, frivolous, or in bad faith, unless the court finds that special circumstances.” 18 U.S.C. § 3006A note (the “Hyde Amendment”). Not an easy standard to meet.

In United States v. Capener, case no. 07-10359 (9th Cir. Jan. 8, 2010), prosecutors went after Dr. Mark Capener for health care fraud, mail fraud, and making false statements:

The charges against him involved billing for surgeries that were allegedly either unnecessary, never performed or exaggerated for billing purposes (“upcoded”). After an extended investigation and a lengthy trial, the district court dismissed many of the counts against Capener on the ground that they were insufficiently supported by the evidence and the jury acquitted Capener of the remaining counts.

Capener asserted that the prosecutors had blindly relied on an expert witness who made assumptions rather than getting additional information, and that they had opposed Capener’s witness subpoenas in bad faith. After being awarded a portion of his fees by the district court, Capener loses on appeal.

The Ninth holds that basing the prosecution on the expert witness was not in bad faith because the expert never asked for additional information or disclosed he was relying on assumptions. “Regardless of the element a prevailing defendant advances, ‘the Hyde Amendment [is] targeted at prosecutorial misconduct, not prosecutorial mistake.’” (quoting United States v. Braunstein, 281 F.3d 982, 995 (9th Cir. 2002) [an example of a successful fee motion].) The court finds that the opposition to the witness subpoenas was not in bad faith both because the opposition was meritorious and because the prosecutors did not object to a second set of subpoenas that cured the defect in the first set.

For some background and perspective on the Hyde Amendment, see this article published shortly after its enactment at the website of the National Association of Criminal Defense Lawyers.